senate Bill S4393A

Relates to preventing defendants from making any profit from their crimes

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 04 / Apr / 2011
    • REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • 03 / May / 2011
    • 1ST REPORT CAL.535
  • 04 / May / 2011
    • 2ND REPORT CAL.
  • 09 / May / 2011
    • ADVANCED TO THIRD READING
  • 10 / May / 2011
    • PASSED SENATE
  • 10 / May / 2011
    • DELIVERED TO ASSEMBLY
  • 10 / May / 2011
    • REFERRED TO GOVERNMENTAL OPERATIONS
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • 20 / Mar / 2012
    • REPORTED AND COMMITTED TO FINANCE
  • 11 / Apr / 2012
    • AMEND AND RECOMMIT TO FINANCE
  • 11 / Apr / 2012
    • PRINT NUMBER 4393A
  • 08 / May / 2012
    • 1ST REPORT CAL.728
  • 09 / May / 2012
    • 2ND REPORT CAL.
  • 14 / May / 2012
    • ADVANCED TO THIRD READING
  • 30 / May / 2012
    • PASSED SENATE
  • 30 / May / 2012
    • DELIVERED TO ASSEMBLY
  • 30 / May / 2012
    • REFERRED TO GOVERNMENTAL OPERATIONS

Summary

Relates to preventing defendants from making any profit from their crimes; includes instances where defendant pleads not responsible by reason of mental disease or defect.

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Bill Details

See Assembly Version of this Bill:
A9497
Versions:
S4393
S4393A
Legislative Cycle:
2011-2012
Current Committee:
Law Section:
Executive Law
Laws Affected:
Amd §632-a, Exec L
Versions Introduced in 2009-2010 Legislative Cycle:
S3231, S3231

Sponsor Memo

BILL NUMBER:S4393A

TITLE OF BILL:
An act to amend the executive law, in relation to a defendant profiting
from his or her crime

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends subdivisions 1 and 2 of §632-a of the Exec-
utive Law which prohibits a defendant who is found or takes a plea of
not responsible by reason of mental disease or defect from deriving a
profit from his or her crime.

Section 2 is the effective date.

JUSTIFICATION:
In the summer of 1977, a series of murders of young women in New York
left the city paralyzed with fear and created a media frenzy. Before the
investigation was complete, news had spread that publishers were offer-
ing to pay a huge sum of money for the rights to the killer's story. In
response, the New York legislature passed Executive Law §632-a, popular-
ly deemed the "Son of Sam" law.

The Son of Sam law was designed to prevent criminals from profiting from
their crimes through the commercial exploitation of their stories. The
law was intended to "ensure that monies received by the criminal under
such circumstances....first be made available to recompense the victims
of that crime for their loss and suffering."

To achieve that goal, the law required that any entity contracting with
anyone accused or convicted of a crime supply a copy of the contract to
the Crime Victims Compensation Board and pay the board any income earned
pursuant to that contract. The money would remain in escrow for five
years, during which time a victim could bring a civil action against his
or her alleged perpetrator. If the civil action was successful, the
funds would be used to satisfy any judgment rendered. If no actions were
pending after five years, the board would then be required to pay the
escrow funds to the accused.

This law has proved so popular that more than 40 states and the federal
government now have Son of Sam laws. However, the the New York statute
has one significant flaw which should be remedied. If a notorious crimi-
nal is found, or takes a plea of not responsible by reason of mental
disease or defect he or she will fall outside the reach of the statute.
This is more important than ever because famous criminals are trading on
their notoriety like never before. The emergence of an underground trade
in objects associated with crime, especially murder is perhaps the most
sickening development so far. These objects, known as "murder memorabi-
lia" or "murderabilia," include manufactured items representative of
criminals or crimes, such as murderer trading cards or figurines, and
non-manufactured items associated with the criminals or crimes them-
selves. Letters and paintings by inmates are especially popular, and

items like hair and fingernail clippings from criminals also provide
easy objects for criminals to cultivate and sell. Charles Manson is
probably the most popular figure in murderabilia, followed by such infa-
mous criminals as John Wayne Gacy, Richard "Nightstalker" Ramirez, and
cannibal Jeffrey Dahmer. Buyers are plentiful in this macabre industry.
What was once an underground practice has entered the mainstream through
the help of Internet auction sites like eBay and Yahoo. Sites dedicated
solely to the trade and collection of such items have also developed,
permitting dealers and buyers to enter into anonymous transactions and
avoid scrutiny by an unsuspecting public. They have also allowed inmates
to skirt prison rules prohibiting transactions outside the prison walls
by enabling agents to easily sell the paraphernalia on their behalf. Had
any of these men been prosecuted in New York and been found, or taken a
plea of, not responsible by reason of mental disease or defect he would
have fallen beyond the protection of §632-a of the Executive Law.

PRIOR LEGISLATIVE HISTORY:
2005-06: Passed Senate
2007-08: Passed Senate
2009-10: Senate Crime Victims, Crime & Corrections Committee

FISCAL IMPLICATIONS:

To be determined.

EFFECTIVE DATE:
This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4393--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 4, 2011
                               ___________

Introduced  by  Sens.  FLANAGAN,  DeFRANCISCO,  GOLDEN, LARKIN, MAZIARZ,
  RANZENHOFER -- read twice and ordered printed, and when printed to  be
  committed  to  the Committee on Crime Victims, Crime and Correction --
  recommitted to the Committee on Crime Victims, Crime and Correction in
  accordance with Senate Rule 6, sec. 8 -- reported favorably from  said
  committee  and  committed  to  the  Committee  on Finance -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the executive law, in relation to a defendant  profiting
  from his or her crime

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 1 and 2 of section 632-a of the executive law,
as amended by section 24 of part A-1 of chapter 56 of the laws of  2010,
paragraph (c) of subdivision 1 as amended by section 100 and the opening
paragraph of paragraph (b) of subdivision 2 as amended by section 101 of
subpart  B  of  part C of chapter 62 of the laws of 2011, are amended to
read as follows:
  1. For the purposes of this section:
  (a) "Crime" means (i) any felony defined in the laws of the state;  or
(ii)  an offense in any jurisdiction which includes all of the essential
elements of any felony defined in the laws of this state  and:  (A)  the
crime  victim,  as  defined in subparagraph (i) of paragraph (d) of this
subdivision, was a resident of this state at the time of the  commission
of the offense; or (B) the act or acts constituting the offense occurred
in whole or in part in this state.
  (b)  "Profits from a crime" means (i) any property obtained through or
income generated from the commission of a crime of which  the  defendant
was  convicted OR FOUND, OR THE COURT ACCEPTS A PLEA OF, NOT RESPONSIBLE
BY REASON OF MENTAL DISEASE OR DEFECT; (ii) any property obtained by  or
income  generated from the sale, conversion or exchange of proceeds of a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10480-06-2

S. 4393--A                          2

crime, including any gain realized by such sale, conversion or exchange;
and (iii) any property which the defendant obtained or income  generated
as a result of having committed the crime, including any assets obtained
through  the  use of unique knowledge obtained during the commission of,
or in preparation for the commission of, a crime, as well as any proper-
ty obtained by or income generated from the sale, conversion or exchange
of such property and any gain  realized  by  such  sale,  conversion  or
exchange.
  (c)  "Funds  of  a  convicted  person"  means  all  funds and property
received from any source by a person convicted of a specified crime,  OR
FOUND,  OR  THE  COURT  ACCEPTS  A PLEA OF, NOT RESPONSIBLE BY REASON OF
MENTAL DISEASE OR DEFECT or by the  representative  of  such  person  as
defined  in  subdivision  six  of section six hundred twenty-one of this
article excluding child support and earned income, where such person:
  (i) is an inmate serving a sentence with the department of corrections
and community supervision or a prisoner confined at a local correctional
facility or federal correctional institute, and includes  funds  that  a
superintendent,  sheriff  or municipal official receives on behalf of an
inmate or prisoner and deposits in an inmate account to  the  credit  of
the inmate pursuant to section one hundred sixteen of the correction law
or deposits in a prisoner account to the credit of the prisoner pursuant
to section five hundred-c of the correction law; or
  (ii)  is  not  an  inmate or prisoner but who is serving a sentence of
probation or conditional discharge or is presently subject to an undisc-
harged indeterminate, determinate or definite term  of  imprisonment  or
period  of  post-release  supervision or term of supervised release, but
shall include earned income earned during a period in which such  person
was  not  in  compliance  with  the  conditions of his or her probation,
parole, conditional release, period of post-release supervision  by  the
department  of  corrections  and community supervision or term of super-
vised release with the United States probation office or  United  States
parole  commission.  For  purposes  of this subparagraph, such period of
non-compliance shall be measured, as applicable, from the earliest  date
of delinquency determined by the department of corrections and community
supervision,  or from the earliest date on which a declaration of delin-
quency is filed pursuant to section 410.30 of the criminal procedure law
and thereafter sustained, or  from  the  earliest  date  of  delinquency
determined  in  accordance  with  applicable federal law, rules or regu-
lations, and shall continue until a final determination  sustaining  the
violation   has  been  made  by  the  trial  court,  the  department  of
corrections and community supervision, or appropriate federal authority;
or
  (iii) is no longer subject to a sentence of probation  or  conditional
discharge or indeterminate, determinate or definite term of imprisonment
or period of post-release supervision or term of supervised release, and
where within the previous three years: the full or maximum term or peri-
od  terminated  or expired or such person was granted a discharge by the
state board of parole or the department  of  corrections  and  community
supervision pursuant to applicable law, or granted a discharge or termi-
nation  from probation pursuant to applicable law or granted a discharge
or termination under applicable federal or state  law,  rules  or  regu-
lations  prior to the expiration of such full or maximum term or period;
and includes only: (A) those funds paid to such person as  a  result  of
any  interest,  right, right of action, asset, share, claim, recovery or
benefit of any kind that the person obtained, or that accrued  in  favor
of  such person, prior to the expiration of such sentence, term or peri-

S. 4393--A                          3

od; (B) any recovery or award collected in a lawsuit after expiration of
such sentence where the right or cause of action accrued  prior  to  the
expiration  or  service  of  such sentence; and (C) earned income earned
during  a  period  in  which  such person was not in compliance with the
conditions of his or her probation, parole, conditional release,  period
of  post-release supervision by the department of corrections and commu-
nity supervision or term of supervised release with  the  United  States
probation  office  or  United  States parole commission. For purposes of
this subparagraph, such period of non-compliance shall be  measured,  as
applicable,  from  the  earliest  date  of delinquency determined by the
department of corrections and community supervision, or from the  earli-
est  date  on  which  a  declaration of delinquency is filed pursuant to
section 410.30 of the criminal procedure law and  thereafter  sustained,
or  from  the earliest date of delinquency determined in accordance with
applicable federal law, rules or regulations, and shall continue until a
final determination sustaining the violation has been made by the  trial
court,  the  department  of  corrections  and  community supervision, or
appropriate federal authority; OR
  (IV) IS COMMITTED TO A SECURE FACILITY DESIGNATED BY THE  COMMISSIONER
OF  MENTAL  HEALTH OR SUBJECT TO TREATMENT WHICH MAY INCLUDE CONDITIONAL
OR UNCONDITIONAL RELEASE.
  (d) "Crime victim" means (i) the victim of a crime; (ii) the represen-
tative of a crime victim as defined in subdivision six  of  section  six
hundred twenty-one of this article; (iii) a good samaritan as defined in
subdivision  seven  of  section  six hundred twenty-one of this article;
(iv) the office of victim services or other governmental agency that has
received an application for or provided financial assistance or  compen-
sation to the victim.
  (e) (i) "Specified crime" means:
  (A)  a violent felony offense as defined in subdivision one of section
70.02 of the penal law;
  (B) a class B felony offense defined in the penal law;
  (C) an offense for which a merit time allowance may  not  be  received
against  the  sentence  pursuant  to paragraph (d) of subdivision one of
section eight hundred three of the correction law;
  (D) an offense defined in the penal law that is titled in such law  as
a felony in the first degree;
  (E)  grand  larceny in the fourth degree as defined in subdivision six
of section 155.30 or grand larceny in the second degree  as  defined  in
section 155.40 of the penal law;
  (F)  criminal  possession  of  stolen property in the second degree as
defined in section 165.52 of the penal law; or
  (G) an offense in any jurisdiction which includes all of the essential
elements of any of the crimes specified in clauses (A)  through  (F)  of
this subparagraph and either the crime victim as defined in subparagraph
(i) of paragraph (d) of this subdivision was a resident of this state at
the  time of the commission of the offense or the act or acts constitut-
ing the crime occurred in whole or in part in this state.
  (ii) Notwithstanding the provisions of subparagraph (i) of this  para-
graph  a  "specified crime" shall not mean or include an offense defined
in any of the following articles of the penal law: articles one  hundred
fifty-eight,  one hundred seventy-eight, two hundred twenty, two hundred
twenty-one, two hundred twenty-five, and two hundred thirty.
  (f) "Earned income" means income  derived  from  one's  own  labor  or
through  active participation in a business as distinguished from income
from, for example, dividends or investments.

S. 4393--A                          4

  2. (a) Every person, firm, corporation,  partnership,  association  or
other legal entity, or representative of such person, firm, corporation,
partnership, association or entity, which knowingly contracts for, pays,
or  agrees  to pay: (i) any profits from a crime as defined in paragraph
(b)  of  subdivision  one  of  this section, to a person charged with or
convicted OR FOUND, OR THE COURT ACCEPTS A PLEA OF, NOT  RESPONSIBLE  BY
REASON  OF  MENTAL DISEASE OR DEFECT, of that crime, or to the represen-
tative of such person as defined  in  subdivision  six  of  section  six
hundred  twenty-one  of  this  article; or (ii) any funds of a convicted
person, as defined in paragraph (c) of subdivision one of this  section,
where  such  conviction is for a specified crime and the value, combined
value or aggregate value of  the  payment  or  payments  of  such  funds
exceeds  or  will exceed ten thousand dollars, shall give written notice
to the office of the payment or obligation to pay as soon as practicable
after discovering that  the  payment  or  intended  payment  constitutes
profits from a crime or funds of a convicted person.
  (b)  Notwithstanding subparagraph (ii) of paragraph (a) of this subdi-
vision, whenever the payment or obligation to pay involves  funds  of  a
convicted  person  that  a superintendent, sheriff or municipal official
receives or will receive on behalf of an inmate serving a sentence  with
the  department  of  corrections  and  community supervision or prisoner
confined at a local correctional facility and deposits or  will  deposit
in  an  inmate  account  to  the  credit  of the inmate or in a prisoner
account to the credit of the prisoner, and the value, combined value  or
aggregate  value  of  such  funds  exceeds  or  will exceed ten thousand
dollars, the superintendent, sheriff or municipal  official  shall  also
give written notice to the office.
  Further,  whenever the state or subdivision of the state makes payment
or has an obligation to pay funds of a convicted person, as  defined  in
subparagraph  (ii)  [or] , (iii) OR (IV) of paragraph (c) of subdivision
one of this section, and the value, combined value or aggregate value of
such funds exceeds or will exceed ten thousand  dollars,  the  state  or
subdivision of the state shall also give written notice to the office.
  In all other instances where the payment or obligation to pay involves
funds of a convicted person, as defined in subparagraph (ii) [or], (iii)
OR  (IV)  of  paragraph  (c) of subdivision one of this section, and the
value, combined value or aggregate value of such funds exceeds  or  will
exceed  ten  thousand dollars, the convicted person who receives or will
receive such funds, or the representative of such person as  defined  in
subdivision six of section six hundred twenty-one of this article, shall
give written notice to the office.
  (c)  The office, upon receipt of notice of a contract, an agreement to
pay or payment of profits from a crime or funds of  a  convicted  person
pursuant to paragraph (a) or (b) of this subdivision, or upon receipt of
notice  of  funds of a convicted person from the superintendent, sheriff
or municipal official of the facility where the inmate  or  prisoner  is
confined  pursuant  to  section one hundred sixteen or five hundred-c of
the correction law, shall notify all known crime victims of  the  exist-
ence of such profits or funds at their last known address.
  S 2. This act shall take effect immediately.

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